Excerpt: - - the definition clearly does not exclude workmen employed by the departments of the government. no contrary intention has been pointed out as would exclude an employee under the public works department from the definition when it satisfied the other conditions of the definition. hold or keep in an existing state or condition, hold, or preserve in any particular state or condition, keep, keep from change, keep from falling, declining, or ceasing, keep in existence or continuance, keep in force, keep in good order, keep in proper condition, keep in repair, keep up,preserve, preserve from lapse, decline, failure, or cessation, provide for, rebuild, repair,replace, supply with means of support, supply of what is needed, support, sustain, uphold. negatively stated, it is defined as not..........be deemed to be the trade or business of the department. the definition clearly does not exclude workmen employed by the departments of the government. no contrary intention has been pointed out as would exclude an employee under the public works department from the definition when it satisfied the other conditions of the definition. on the contrary. from schedule ii it would appear that a person engaged in the construction, maintenance, repair or demolition of any building of a specified height could always be considered a workman. the department was required to keep an office from where amongst other businesses their activities could be conducted. the deceased was employed as a chowkidar in this office and he was required to be present there even during the night. this was for the.....

Judgment:

K.K. Dube, J.

1. This is an appeal under Section 30(1)(a) of the Workmen's Compensation Act, 1923 by the dependants of deceased Babulal who at all material times, was employed in the services of the Public Works Department (Building & Works). Narsimhapur.

2. It is common ground that the deceased Babulal was employed as a chowkidar in the office of Public Works Department. On the night of 12th April, 1968, a burglary chanced to take place in the office in which Babulal was murdered by the miscreants. Babulal was admittedly on duty on the night in question and had been enjoined to look after the premises which was being used as office by the respondents.

3. It is not disputed now, and which fact has been fully proved by the evidence on record, that at the time of the murder, deceased Babulal was drawing Rs. 80 per month as wages. The appellants who are the dependants of deceased Babulal claim a sum of Rs. 6,000 as compensation as according to them, deceased Babulal was a workman and had lost his life in an accident in course of his duties. They also claim Rs. 3,000 as penalty under Section 4A(1) of the Workmen's Compensation Act, 1923 and interest at the rate of Rs. 6 per cent per annum on the amount of compensation. The respondents deny that the deceased Babulal was a workman on various grounds and one of them being that he was borne on contingent establishment.

4. The Labour Court found that the deceased Babulal's employment was not casual. It appears from the evidence of Khersingh (D.W. 1) who was the overseer at Narsimhapur that deceased Babulal was employed as the chowkidar and was drawing monthly salary. In addition to the salary of Rs. 73 he was also drawing Rs. 5 as labour charges for bringing water and Rs. 2 as dusting allowance. The assertion that he was borne on contingent establishment would not make the employment as casual. It appears from the evidence that he had been in the service for the last 10 years though he was originally employed for construction of road. From the evidence of his long service record, it cannot be said that he was a casual labourer and we hold so. The Labour Court, however, was of the view that the deceased Babulal was not a workman within the definition of Section 2(1)(n) read with Clause (viii)(c) of Schedule II of the Workmen's Compensation Act. It is this finding that is challenged before us. As to the question of quantum to which the appellants would be entitled, there is no dispute that it would be Rs. 6,000 in accordance with the table provided in Schedule IV of the Act.

5. The question that falls to be considered is : Was the deceased a workman Sub-section (n) of Section 2(1) of the Workmen's Compensation Act defines 'workman' as below:

'Workman' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business) who is-

(i) ...

(ii) employed...on monthly wages not exceeding five hundred rupees, in any such capacity as is specified in Schedule II whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of the Armed Forces of the Union...; and any reference to a workman who has been injured, shall where the workman is dead, include a reference to his dependants or any of them.

(2) The exercise and performance of the powers and duties of a local authority or of any department acting on behalf of the Government shall, for the purposes of this Act, unless a contrary intention appears, be deemed to be the trade or business of such authority or department.

The definition has, therefore, to be read along with Schedule II and the relevant item that concerns us is Entry No. (viii) of Schedule II which reads as under:

The following persons are workmen within the meaning of Section 2(1)(n) and subject to the provisions of that section, that is to say, any person who is-. ... ...

(viii) employed in the construction, maintenance, repair or demolition of

(a) any building which is designed to be or is or has been more than one storey in height above the ground or twelve feet or more from the ground level to the apex of the roof : or. ... ...

6. From the above definition it would appear that a workman is one who is employed for the purpose of employer's trade or business. The deceased was undoubtedly, employed by the respondents but could it be said that the activities of the Public Works Department was trade or business. It is only if the answer was in the affirmative that the deceased would come within the definition of a 'workman'. The Public Works Department at Narsimhapur was engaged in such activities as constructing buildings, roads, bridges and other public works and also to maintain and repair them. The work done by the department was such as could normally be entrusted to a private contractor but the department either to maintain the standard of work or the work done departmentally having proved economical to them were maintaining an establishment analogous to a business.

7. Referring to the activities of the Government in the field of productive industry, it was observed by their Lordships of the Supreme Court in The Secr., Madras Gymkhana Club Employees' Union v. The Management : (1967)IILLJ720SC , it was observed-

The expansion of the Governmental or Municipal activities in fields of productive industry is a feature of all developing welfare States. This is considered necessary because it leads to welfare without exploitation of workmen and makes the production of material goods and services cheaper by eliminating profits. Government and the local authorities act as individuals do and the policy of the Act is to put Government and local authorities on a par with private individuals. But Government cannot be regarded as an employer within the Act if the operations are Governmental or administrative in character.

The department could not be said to be engaged in operations that were governmental or administrative in character. By Section 2(2) of the Act, it is clear that the exercise and performance of the powers of any department acting on behalf of the Government shall, for the purposes of the Act, unless a contrary intention appears, be deemed to be the trade or business of the department. The definition clearly does not exclude workmen employed by the departments of the Government. No contrary intention has been pointed out as would exclude an employee under the Public Works Department from the definition when it satisfied the other conditions of the definition. On the contrary. from Schedule II it would appear that a person engaged in the construction, maintenance, repair or demolition of any building of a specified height could always be considered a workman. The department was required to keep an office from where amongst other businesses their activities could be conducted. The deceased was employed as a chowkidar in this office and he was required to be present there even during the night. This was for the purpose of protecting the property and the office from unwarranted interference from trespassers, burglars and from other elements. The office kept by the Public Works Department was for the purpose of their trade and business. We hold that the deceased was employed for the purpose of departmental business as envisaged in the definition of 'workman' under Section 2(1)(n) of the Workmen's Compensation Act.

8. Under Item (viii) of Schedule II of the Workmen's Compensation Act unless the employment was in the construction, maintenance, repair or demolition of any building as specified in Clause (a) beneath it, he would not be a workman. The trial Court considered the case only insofar as the question whether or not the deceased was employed in the construction, repair or demolition of the building was concerned. It lost sight of the fact that if the employee was engaged for maintenance of the building then too he would be a workman within the meaning of cl.(n) of 2(1) of the Act. The word, 'maintain' has been explained in Black's Law Dictionary, Fourth Edition, thus:

Maintain, as its structure indicates, signifies literarilly to hold by the hand.

It is variously defined as acts of repairs and other acts to prevent a decline, lapse of cessation from existing state or condition ; bear the expense of: carry on, commence; continue; furnish means for subsistence or existence of hold; hold or keep in an existing state or condition, hold, or preserve in any particular state or condition, keep, keep from change, keep from falling, declining, or ceasing, keep in existence or continuance, keep in force, keep in good order, keep in proper condition, keep in repair, keep up,preserve, preserve from lapse, decline, failure, or cessation, provide for, rebuild, repair,replace, supply with means of support, supply of what is needed, support, sustain, uphold. Negatively stated, it is defined as not to lose or surrender, not to suffer or fail or decline.. ... ... ...

To 'maintain an airport' is to keep it in state of efficiency for the furnishing of those facilities and the rediness of those services which air transportation and communication demand. Concordia-Arrow Flying Service Corporation v. City of Concordia 131 Kan. 247, 289p. 955 at p. 957.

9. The functions of a watchman are such as enjoin him to maintain the building inasmuch as he is required to keep it going and to preserve it against unwarranted interferences from unauthorised persons and from cattle nuisance. He wasalso required to keep it clean by sweeping the premises and by dusting it. He was thus engaged in the upkeep of the office for the purpose of keeping it in efficient state and his services were indispensable for maintenance of the office. It has been pointed out that even some cash was kept in the office and, therefore, he was there to guard it. All these services would undoubtedly show that he was engaged in the maintenance of the office. He had not been murdered for any private reasons but he suffered death while trying to maintain the building in the course of his duty. In our opinion, the services rendered by him would be for the maintenance of the office and building and thus construed, he was a 'workman' as defined under the Act and we hold so.

10. It has lastly been contended that the murder could not be construed as an accident from the point of view of the Workmen's Compensation Act. In Nisbet v. Rayne and Burn [1910] 2 KBD 689, the matter was considered by the Court of Appeal and it was held that the murder was an 'accident' from the point of view of the person who suffered from it. It was an unlooked for mishap or untoward event which was not expected or designed. The word 'accident' excludes the idea of wilful and intentional act but as explained in Nisbet's case (supra), the phrase ought to be held to include murder as it was an accidental happening so far as the workman was concerned.

11. We would, therefore, allow the appeal and set aside the order of the Commissioner under the Workmen's Compensation Act and allow the claim of the workman to the extent of Rs. 6,000 plus interest at the rate of Rs. 6 per cent per annum from the date it fell due under Section 4 of the Act, with costs throughout. Since the employers had defaulted as they had not paid the amount when it fell due, the appellants are also entitled to a penalty under Section 4A of the Workmen's Compensation Act, In the circumstances of the case, we determine the penalty at Rs. 200. We order accordingly. Counsel's fee Rs. 100 if certified.